B-173882, APR 3, 1975 54 COMP GEN 819

B-173882, APR 3, 1975 54 COMP GEN 819

LEASES - AGREEMENT TO EXECUTE LEASE - FEDERAL PROJECT STATUS - RELOCATION EXPENSES TO "DISPLACED PERSONS" - EFFECTIVE DATE OF ENTITLEMENT TENANTS OF TEMPLE TRAILER VILLAGE WHO VACATED VILLAGE PRIOR TO JUNE 30, 1971, DATE OF "ACQUISITION" OF LEASE-HOLD INTEREST IN PROPERTY BY GENERAL SERVICES ADMINISTRATION ARE NOT ENTITLED TO BENEFITS OF UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES ACT OF 1970. GOVERNMENT WAS NOT COMMITTED TO ACQUIRE PROPERTY, TENANT MOVES WERE NOT RESULT OF GOVERNMENT'S ACQUISITION, AND GOVERNMENT DID NOT TAKE AN ACTIVE ROLE IN ENCOURAGING TENANTS TO MOVE. HOUSING - DISPLACEMENT - RELOCATION COSTS - EFFECTIVE DATE OF ENTITLEMENT HOLDING IN 51 COMP. GEN. 660 (1972) THAT GENERAL SERVICES ADMINISTRATION (GSA) LEASE DATED JUNE 30, 1971, WAS "LEASE CONSTRUCTION" PROJECT ENTITLES ONLY TENANTS OF TEMPLE TRAILER VILLAGE DISPLACED AFTER THAT DATE TO BENEFITS OF UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES ACT OF 1970 BUT DOES NOT EXTEND TO PERSONS VACATING VILLAGE PRIOR TO THAT DATE.

IN THE MATTER OF RELOCATION ASSISTANCE FOR SOME FORMER TENANTS OF TEMPLE TRAILER VILLAGE, APRIL 3, 1975:

IN A LETTER FROM THE GENERAL COUNSEL OF THE GENERAL SERVICES ADMINISTRATION (GSA) WE HAVE BEEN ASKED FOR OUR VIEWS AS TO THE PROPRIETY OF PAYMENTS OF CERTAIN RELOCATION EXPENSES UNDER THE UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES ACT OF 1970 (RELOCATION ACT), PUBLIC LAW 91-646, JANUARY 2, 1971, 84 STAT. 1894, 42 U.S.C. SEC. 4601 (1970). SPECIFICALLY, FORMER TENANTS OF TEMPLE TRAILER VILLAGE, OF ALEXANDRIA, VIRGINIA, WHO MOVED FROM PREMISES BEFORE JUNE 30, 1971, THE DATE ON WHICH THE GOVERNMENT ENTERED INTO A LEASE WITH THE OWNERS OF THE PREMISES, HAVE MADE CLAIM TO BENEFITS UNDER THE ACT. IN ADDITION TO THE VIEWS OF GSA, THE ATTORNEY FOR THE CLAIMANTS HAS SUPPLIED US WITH HIS VIEWS AS TO THE ENTITLEMENT OF HIS CLIENTS FOR THE BENEFITS OF THE ACT.

THE SPECIFIC FACTUAL CONTEXT IN WHICH THIS ISSUE ARISES WAS BROUGHT TO OUR ATTENTION IN AN EARLIER REQUEST FOR DECISION. AS DESCRIBED IN THAT DECISION, 51 COMP. GEN. 660 (1972), TO THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION, THE ESSENTIAL FACTS IN THIS MATTER ARE:

*** ON JUNE 30, 1971, GSA ACCEPTED AN OFFER MADE BY THE JOINT VENTURE OF HUBERT N. HOFFMAN AND THE AMERICAN TRAILER COMPANY, INC., TO LEASE ABOUT 480,000 SQUARE FEET OF SPACE IN A BUILDING LOCATED IN ALEXANDRIA, VIRGINIA. THE OFFER WAS MADE IN RESPONSE TO A SOLICITATION FOR OFFERS (SFO) FOR SPACE IN THE GENERAL AREA OF ALEXANDRIA. THE SPACE OFFERED BY THE JOINT VENTURE IS IN A BUILDING WHICH, YOU STATE, MEETS THE CRITERIA PRESCRIBED IN THE SFO FOR QUALIFYING AS A BUILDING UNDER CONSTRUCTION, ALTHOUGH ACTUAL CONSTRUCTION HAD NOT STARTED. THE SITE OF THE BUILDING IS A 12 1/2 ACRE AREA OWNED BY AMERICAN TRAILER COMPANY, INC., WHICH FOR SEVERAL YEARS HAS BEEN OPERATED AS A MOBILE HOME OR TRAILER PARK IDENTIFIED AS TEMPLE TRAILER VILLAGE. THE TRAILER COMPANY ENTERED INTO A JOINT VENTURE AGREEMENT ON OCTOBER 6, 1967, WITH HUBERT N. HOFFMAN TO DEVELOP THIS 12 1/2 ACRES, ALONG WITH AN ADJOINING 12 1/2 ACRES OF LAND OWNED BY HOFFMAN, FOR COMMERCIAL OFFICE BUILDINGS AND OTHER RENTAL SPACE. THE BUILDING IN WHICH THE LEASED SPACE IS OFFERED IS IN FURTHERANCE OF THAT AGREEMENT. GSA STATES THAT THE GOVERNMENT'S LEASE WILL COVER ONLY THE OFFICE SPACE IN THE BUILDING AND THAT THE OWNER PUBLICLY ANNOUNCED THAT THE REMAINING SPACE IN THE BUILDING WILL BE AVAILABLE FOR COMMERCIAL TENANTS. MR. KREVOR STATES, HOWEVER, THAT THAT SPACE NOT BEING USED BY THE GOVERNMENT FOR OFFICES, WILL BE USED FOR SERVICES TO SUPPORT THE GOVERNMENT EMPLOYEES, SUCH AS A CAFETERIA. PRIOR TO GSA'S ACCEPTANCE OF THE OFFER, THE OFFEROR ADVISED THAT ALTHOUGH CONSTRUCTION OF THE BUILDING HAD NOT YET STARTED, SITE PREPARATION WORK HAD BEGUN ON APRIL 1, 1971. GSA WAS ALSO INFORMED THAT THE OWNERS OF TRAILERS IN THE TEMPLE TRAILER VILLAGE WERE NOTIFIED IN EARLY JULY THAT THE TRAILER PARK WOULD BE CLOSED AND UTILITIES DISCONTINUED AFTER AUGUST 31, 1971. ID., 660, 661.

WE HELD IN THAT CASE THAT THOSE VILLAGE TENANTS WHO DID NOT VACATE UNTIL AFTER THE GOVERNMENT, ON JUNE 30, 1971, SIGNED AN AGREEMENT TO LEASE THE BUILDING TO BE CONSTRUCTED ON THE LAND TO BE VACATED, WERE "DISPLACED PERSONS" AS A RESULT OF A FEDERAL PROGRAM WITHIN THE CONTEMPLATION OF THE RELOCATION ACT AND ENTITLED TO THE BENEFITS THEREOF.

THE ISSUE PRESENTLY BEFORE US CONCERNS THE APPLICABILITY OF THE ACT TO THOSE PERSONS WHO MOVED FROM THE TRAILER VILLAGE BETWEEN JANUARY 2, 1971, THE EFFECTIVE DATE OF THE ACT, AND JUNE 30, 1971, THE DATE THE GOVERNMENT ENTERED INTO THE LEASE AGREEMENT. THIS ISSUE WAS NOT ADDRESSED IN OUR PRIOR DECISION.

THE BENEFITS OF THE RELOCATION ACT EXTEND ONLY TO "DISPLACED PERSONS" WHO ARE REQUIRED TO VACATE THEIR PROPERTIES AS THE RESULT OF THE ACQUISITION OF THE PROPERTY OR AS THE RESULT OF THE WRITTEN ORDER OF THE ACQUIRING AGENCY TO VACATE. IN OUR DECISION IN 51 COMP. GEN. 660, WE HELD, IN EFFECT, THAT THE PARTICULAR LEASE ENTERED INTO ON JUNE 30, 1971, WAS EFFECTIVELY A LEASE-CONSTRUCTION CONTRACT AND HENCE AN ACQUISITION WITHIN THE MEANING OF THE STATUTE AND ITS LEGISLATIVE HISTORY. WE HELD THAT THOSE WHO VACATED THEIR PROPERTY ON OR AFTER THAT DATE WERE DISPLACED BY THE ACQUISITION.

THE CLAIMANTS ALLEGE THAT IT WAS SUGGESTED TO THE TENANTS THAT THE VILLAGE WOULD LIKELY BE CLOSING AND THAT THEY WOULD BE WISE TO MOVE AS THE OPPORTUNITIES AROSE. IT IS FURTHER ALLEGED THAT THE SERVICES IN THE VILLAGE WERE ALLOWED TO DETERIORATE. THE ATTORNEY FOR THE CLAIMANTS STATES THAT THE RUMORS OF IMPENDING CLOSURE OF THE VILLAGE WERE IN NO WAY DISPELLED BY GSA, LEADING TO A "'GET-WHILE-THE-GETTING IS-GOOD' ATMOSPHERE TO THE CONSIDERABLE INJURY OF THE PEOPLE INVOLVED." HE CONTENDS, AMONG OTHER THINGS, THAT DUE TO ITS ERRONEOUS INTERPRETATION OF THE ACT, GSA FAILED TO ADVISE THOSE TENANTS LEAVING PRIOR TO JUNE 30, 1971, OF THEIR POSSIBLE RIGHTS AND BENEFITS UNDER THE ACT IF THEY WERE TO REMAIN.

INASMUCH AS THERE WAS NO WRITTEN ORDER FROM GSA ADVISING THE TENANTS OF TEMPLE TRAILER VILLAGE TO VACATE, IN ORDER FOR US TO FIND THAT THE PRESENT CLAIMANTS ARE ENTITLED TO THE BENEFITS OF THE ACT, WE MUST DETERMINE THAT THEY WERE DISPLACED BY THE ACQUISITION OF THE PROPERTY.

WE NOTE THAT PRIOR TO ITS ENTERING INTO THE LEASE ON JUNE 30, 1971, GSA HAD NOT LEGALLY COMMITTED ITSELF TO OCCUPYING ANY BUILDING THE VILLAGE OWNER MIGHT DECIDE TO ERECT ON THE PREMISES. IF TEMPLE TRAILER VILLAGE, IN EFFECT, CONSTRUCTIVELY EVICTED ITS TENANTS PRIOR TO RECEIVING A FIRM LEASE AGREEMENT FROM THE GOVERNMENT, IT APPEARS TO US THAT IT DID SO AT ITS OWN RISK. THAT IS, IT COULD HAVE BEEN LEFT WITHOUT TRAILER TENANTS AND WITHOUT A TRIPLE-A RATED LESSEE (I.E., THE GOVERNMENT) UPON WHICH IT COULD RELY TO APPLY FOR CONSTRUCTION FINANCING FOR ERECTING AN OFFICE BUILDING. FURTHER, THERE DOES NOT APPEAR TO BE ANY EVIDENCE THAT GSA INTERVENED IN THE MATTER IN ORDER TO INDUCE THE TENANTS TO LEAVE. ALSO, IT DOES NOT SEEM THAT GSA WOULD HAVE HAD ANY SPECIAL INTEREST IN HAVING THESE TENANTS VACATE PRIOR TO ITS ENTERING INTO THE SUBJECT LEASE SINCE, PRIOR TO OUR DECISION, IT HAD NEVER CONSIDERED THE PROJECT AS SUBJECT TO THE RELOCATION ACT. THUS ON THE BASIS OF THE RECORD BEFORE US, IT SEEMS THAT GSA'S ACTIONS IN THIS CASE WERE NOT DESIGNED TO AVOID OR EVADE THE REQUIREMENTS OF THE RELOCATION ACT, BUT RATHER WERE IN CONSIDERATION OF CERTAIN RESTRICTIONS CONGRESS HAD PLACED IN THE THEN APPLICABLE GSA APPROPRIATION ACT. 51 COMP. GEN. 660, 663,665.

ON THE FACTS HERE INVOLVED, WE FIND IT DIFFICULT TO CONCLUDE THAT THOSE TENANTS WHO, BETWEEN JANUARY 2 AND JUNE 30, 1971, VACATED TEMPLE TRAILER VILLAGE (AS A RESULT OF ITS ACTIVITIES) WERE DISPLACED BY THE GOVERNMENT'S "ACQUISITION" OF THAT PROPERTY (PRECIPITATED) UNDER A LEASE SIGNED ON JUNE 30, 1971. MOREOVER, IT DOES NOT APPEAR THAT GSA TOOK ANY ACTIVE ROLE IN ENCOURAGING THE TENANTS TO VACATE. HENCE, WE CANNOT CONCLUDE IN THIS SITUATION THAT TENANTS OF TEMPLE TRAILER VILLAGE WHO VACATED THAT PROPERTY PRIOR TO JUNE 30, 1971, DID SO AS A RESULT OF "ACQUISITION" BY THE GOVERNMENT SO AS TO ENTITLE THEM TO THE BENEFITS ACCORDED "DISPLACED PERSONS" UNDER THE RELOCATION ACT.

WE MIGHT NOTE THAT IN REACHING THIS CONCLUSION WE ARE AWARE THAT GSA OFFICIALS HAD ENGAGED IN LENGTHY NEGOTIATIONS OVER THIS PROPERTY INCIDENT TO ENTERING INTO THE SUBJECT LEASE. WE ARE ALSO AWARE OF THE PUBLICITY WHICH SURROUNDED THE IMPENDING LEASE WHICH EMPHASIZED THE PROSPECTIVE PLIGHT OF THE TENANTS IF THEY WERE TO BE REQUIRED TO VACATE TO MAKE WAY FOR THE CONSTRUCTION OF A BUILDING WHICH WOULD BE RENTED TO THE GOVERNMENT. HOWEVER, THE RELOCATION ACT DOES NOT, AS SUGGESTED BY THE CLAIMANTS, REQUIRE THAT THE GOVERNMENT INFORM TENANTS THAT THEIR LANDLORD HAS RESPONDED TO A SOLICITATION EITHER FOR LEASED SPACE OR FOR THE SALE OF SPACE.

WE RECOGNIZE, OF COURSE, THAT THE EFFECT OF THIS DECISION IS THAT THOSE MOVING AFTER THE LEASE WAS ENTERED INTO ARE ELIGIBLE FOR BENEFITS UNDER THE ACT WHILE THEIR NEIGHBORS WHO MOVED PRIOR TO THAT DATE WILL NOT BE SO ENTITLED. HOWEVER, IN OUR VIEW, THE ISSUE OF WHETHER THOSE PERSONS SHOULD BE COVERED IS, IN LIGHT OF THE PARTICULAR CIRCUMSTANCES HERE INVOLVED, A MATTER OF POLICY FOR CONGRESSIONAL DETERMINATION. IN THIS REGARD WE ARE AWARE THAT THE INSTANT SITUATION HAD BEEN BROUGHT TO THE ATTENTION OF THE CONGRESS.

ON DECEMBER 21, 1973, THE HOUSE COMMITTEE ON PUBLIC WORKS REPORTED ON S. 261, 93D CONG., 1ST SESS., ENTITLED "AN ACT TO AMEND THE UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES ACT OF 1970 TO PROVIDE FOR MINIMUM FEDERAL PAYMENTS FOR FOUR ADDITIONAL YEARS, AND FOR OTHER PURPOSES." SECTIONS 2 AND 3 THEREOF STATE:

SEC. 2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, NO PERSON WHO IS ELIGIBLE FOR ASSISTANCE UNDER THE UNIFORM RELOCATION ASSISTANCE PROPERTY ACQUISITION POLICIES ACT OF 1970 SHALL BE DENIED SUCH ELIGIBILITY IF HE MOVED FROM FACILITIES HE WAS OCCUPYING DUE TO HIS ANTICIPATION OF GENERAL SERVICES ADMINISTRATION LEASE PROJECT GS-03-B 5960 IN ALEXANDRIA, VIRGINIA.

SEC. 3. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ANY PERSON WHO MOVES OR RELOCATES HIS PLACE OF BUSINESS CURRENTLY LOCATED AT 57 KNEELAND STREET, BOSTON, MASSACHUSETTS, AS A RESULT OF A NATIONAL CANCER INSTITUTE RESEARCH CENTER GRANT 1-P02-CA12924-01, AWARDED TO TUFTS UNIVERSITY, SHALL BE DEEMED TO BE A DISPLACED PERSON AND ELIGIBLE FOR ASSISTANCE UNDER THE UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES ACT OF 1970.

SIMILAR PROVISIONS WERE NOT CONTAINED IN THE SENATE PASSED VERSION OF S. 261.

THE COMMITTEE'S REPORT ON THOSE SECTIONS STATES:

TWO PROJECTS HAVE COME TO THE ATTENTION OF THE COMMITTEE IN WHICH THE ORIGINAL INTENT OF THE UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES ACT OF 1970 IS BEING VIOLATED. SECTIONS 2 AND 3 OF THE AMENDMENT REITERATE THE INTENT OF CONGRESS TO INSURE THAT ALL PERSONS DISPLACED BY THESE PROJECTS AFTER JANUARY 2, 1971, SHALL RECEIVE THE BENEFITS OF THE ACT.

THE FIRST INVOLVES GENERAL SERVICES ADMINISTRATION LEASE PROJECT GS 03-B- 5960 IN ALEXANDRIA, VIRGINIA. THE ACTION OF THE GENERAL SERVICES ADMINISTRATION IN DENYING RELOCATION BENEFITS TO SOME DISPLACED PERSONS IS CONTRARY TO THE INTENT OF THE ACT. THIS AMENDMENT REAFFIRMS WHAT WAS INTENDED BY THE ACT.

THE SECOND CASE INVOLVES THE NATIONAL CANCER INSTITUTE RESEARCH CENTER GRANT 1-PO2-CA12924-01, AWARDED TO TUFTS UNIVERSITY, BOSTON, MASSACHUSETTS, WHERE LONG TIME TENANTS OF THE UNIVERSITY ARE BEING DISPLACED TO MAKE ROOM FOR A FEDERALLY ASSISTED PROGRAM. SECTION 3, LIKE SECTION 2, IS A SIMPLE CLARIFICATION OF THE CONGRESSIONAL INTENT.

REPORT H. 93-747, 93D CONG., 1ST SESS. 2-3 (1973). AFTER RECEIVING THE REPORT, THE HOUSE TOOK NO FURTHER ACTION ON S. 261 DURING THE 93D CONGRESS.

NOTWITHSTANDING S. 261 AND ITS LEGISLATIVE HISTORY, WE DO NOT BELIEVE THAT THE BENEFITS AFFORDED UNDER THE RELOCATION ACT ARE AVAILABLE TO PERSONS WHO VACATE PROPERTY IN THE MERE ANTICIPATION OR EXPECTATION THAT THERE MAY BE AN ACQUISITION BY THE UNITED STATES. WE WOULD POINT OUT THAT EVEN IF SECTION 2 OF S. 261 WERE ENACTED INTO LAW IT WOULD APPLY ONLY TO THE SO-CALLED TEMPLE TRAILER VILLAGE ACQUISITION, I.E., GSA LEASE PROJECT GS-03-B-5960. MOREOVER, THE CITED COMMITTEE REPORT, COMING SOME 2 YEARS AFTER ENACTMENT OF THE RELOCATION ACT IS, ACCORDING TO GENERALLY ACCEPTED PRINCIPLES OF STATUTORY CONSTRUCTION, NOT DETERMINATIVE, ON INTERPRETING THAT ACT. WHATEVER ITS VALUE IN INTERPRETING THE RELOCATION ACT, IT IS CLEAR THAT THE ENACTMENT OF A PROVISION COMPARABLE TO SECTION 2 OF S. 261 AS REPORTED BY THE HOUSE COMMITTEE ON PUBLIC WORKS WOULD AFFORD THE BENEFITS OF THE RELOCATION ACT TO THOSE FORMER TENANTS OF TEMPLE TRAILER VILLAGE WHO VACATED THE VILLAGE BETWEEN JANUARY 2 AND JUNE 30, 1971, AND WHO CAN DEMONSTRATE THAT THE MOVE WAS IN ANTICIPATION OF GSA ENTERING THE SUBJECT LEASE AND NOT FOR SOME OTHER PURPOSE.

IN THE ABSENCE OF THE ENACTMENT OF SUCH LEGISLATION, IT IS OUR VIEW THAT THE CLAIMANTS IN THIS MATTER ARE NOT ENTITLED TO THE BENEFITS OF THE RELOCATION ACT.